Opinion
2011-09-22
The PEOPLE of the State of New York, Respondent,v.Mikal SMITH, Defendant–Appellant.
Leonard J. Levenson, New York, for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Britta Gilmore of counsel), for respondent.
Leonard J. Levenson, New York, for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Britta Gilmore of counsel), for respondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered March 16, 2009, convicting defendant, after a jury trial, of burglary in the third degree, robbery in the second degree, criminal impersonation in the first degree and petit larceny, and sentencing him, as a second violent felony offender, to an aggregate term of 9 years, unanimously modified, on the law, to the extent of vacating the burglary conviction and dismissing that count of the indictment, and otherwise affirmed.
Except as to the burglary conviction, the verdict was based on legally sufficient evidence and was not against the weight of the evidence. Defendant, together with an accomplice, impersonated police officers in order to effect physical control over the victim. They compelled him to submit to a patdown, and in the process they took property from his person. This satisfied the force element of second-degree robbery ( see People v. Lomba, 183 A.D.2d 672, 584 N.Y.S.2d 61 [1992], lv. denied 80 N.Y.2d 906, 588 N.Y.S.2d 831, 602 N.E.2d 239 [1992]; People v. Lazarcheck, 176 A.D.2d 691, 692, 575 N.Y.S.2d 830 [1991], lv. denied 79 N.Y.2d 1003, 584 N.Y.S.2d 458, 594 N.E.2d 952 [1992] ). The theft was not merely a larceny by trick, because the removal of property was accomplished not only by impersonating police officers, but also by physically restraining the victim during the patdown.
The evidence did not satisfy the unlawful entry element of burglary. Defendant only entered the common areas of an apartment building. There was no evidence that the general public was excluded from these areas ( see People v. Maisonet, 304 A.D.2d 674, 760 N.Y.S.2d 58 [2003], lv. denied 100 N.Y.2d 584, 764 N.Y.S.2d 394, 796 N.E.2d 486 [2003] ). At the time of the robbery, the victim's building had no doorman, buzzer or intercom system, and the front door to the building was always unlocked. There was no evidence of any “no trespassing” signs. The fact that defendant had no legitimate reason to be in the building did not establish unlawful entry ( id.; see also Penal Law § 140.00[5] ).
We have considered and rejected defendant's remaining claims.